by Michelle R. Ferber and Julie Ann Giammona
California has passed a myriad of new laws that will become effective January 1, 2019 that expand employer liability for sexual harassment. Below is a brief summary of each law.
Under current law, the California Fair Employment and Housing Act (FEHA), provides that an employer can be liable for sexual harassment of an employee by a non-employee if the employer knew or should have known of the non-employee’s conduct and failed to take appropriate action. SB 1300 expands employer liability to include the acts of non-employees for all forms of unlawful harassment, not just sexual harassment. Additionally, SB 1300 prevents employers from forcing employees to execute general releases that include non-disparagement provisions that prevent an employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment, either in exchange for a bonus or as a condition of employment or continued employment. Lastly, SB 1300 Section 12923 to the California Government Code provides specific declarations regarding legislative intent: (a) harassment cases are rarely appropriate for summary judgment; (b) a “single incident of harassing conduct” may suffice under certain circumstances to support a claim of hostile work environment; (c) in a harassment lawsuit, the employee does not need to prove that his or her “tangible productivity” declined as a result of the harassment; and (d) the legal standard for sexual harassment does not change based upon the type of workplace; it is irrelevant that a certain occupation has a greater frequency of sexually related conduct in the past.
As a result of the above changes, employers face greater liability exposure, and are left with less defense tools when an action is brought. Getting a sexual harassment lawsuit dismissed prior to trial on a motion for summary judgment will be extremely difficult and limited to rare situations.
Sexual harassment training requirements have now increased for employers. No later than January 1, 2020, any employer with five or more employees, including temporary and/or seasonal employees, must provide at least two hours of sexual harassment training to all supervisory employees, and at least one hour to all non-supervisory employees. Thereafter, the training must take place once every two years.
SB 820 adds Section 1001 to the California Code of Civil Procedure which now prohibits any settlement agreement entered into on or after January 1, 2019 from containing language preventing disclosure of factual information related to claims of sexual assault, sexual harassment, or discrimination based on sex. This includes severance or separation agreements. However, the name of the claimant can be kept confidential at the claimant’s request. Lastly, the parties may also agree to keep the amount paid in the settlement confidential.
Moving forward, employers should ensure that release agreements do not prevent a claimant from discussing the factual underpinnings of his or her claims against the employer.
Beginning January 1, 2019, a victim of sexual assault (where the assault occurred on or after the victim’s 18th birthday) now has a longer period of time to bring a civil action for recovery of damages. Previously, a person had two years to bring a claim of sexual harassment from the date of the alleged assault. AB 1619 expands the statute of limitations to the later of (a) 10 years from the date of the last act, or (b) 3 years from the date the person discovered or reasonably should have known of a sexual assault.
AB 3109 makes unenforceable any provision in a settlement agreement that prevents a party from testifying in an administrative, legislative, or judicial proceeding regarding sexual harassment and or alleged criminal conduct.
Moving forward, employers should confirm that release agreements do not prevent an employee from testifying about the alleged unlawful conduct.
As always, Ferber Law stands ready and willing to advise you on the above changes. Ferber Law provides the required training on prohibited harassment in the workplace. Our attorneys have the expertise and knowledge to guide you as we approach 2019.
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.